Non-Standard Workers: The South African Context, International Law and Regulation by The European Union


  • E S Fourie Unuiversity of Johannesburg



The current labour market has many forms of employment relations that differ from full-time employment. "Atypical," "non-standard," or even "marginal" are terms used to describe these new workers and include, amongst others, parttime work, contract work, self-employment, temporary, fixed-term, seasonal, casual, piece-rate work, employees supplied by employment agencies, home workers and those employed in the informal economy. These workers are often paid for results rather than time. Their vulnerability is linked in many instances to the absence of an employment relationship or the existence of a flimsy one. Most of these workers are unskilled or work in sectors with limited trade union organisation and limited coverage by collective bargaining, leaving them vulnerable to exploitation. They should, in theory, have the protection of current South African labour legislation, but in practice the unusual circumstances of their employment render the enforcement of their rights problematic. The majority of non-standard workers in South Africa are those previously disadvantaged by the apartheid regime, compromising women and unskilled black workers. The exclusion of these workers from labour legislation can be seen as discrimination, which is prohibited by almost all labour legislation in South Africa. This contribution illustrates how the concept of indirect discrimination can be an important tool used to provide labour protection to these workers. The purpose of this article is to explore the scope of the extension of labour rights to non-standard workers in the context of South African labour laws and the international framework. 


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Benjamin 2004 ILJ

Benjamin P “An accident of history: Who is (and who should be) an employee under South African labour law?” 2004 Industrial Law Journal 788-804

Benjamin 2008 ILJ

Benjamin P “Informal work and labour rights in South Africa” 2008 Industrial Law Journal 1579-1604

Bezuidenhout et al "Non-standard employment"

Bezuidenhout A, Godfrey S and Theron J with Modisha M “Non-standard employment and its policy implications” Report submitted to the

Department of Labour (Sociology of Work Unit, University of the

Witwatersrand and Labour and Enterprise Project, University of Cape Town 2003)

Du Toit et al Labour Relations Law

Du Toit D et al Labour Relations Law: A comprehensive guide 5th ed

(LexisNexis Butterworths 2006)

Dupper 2002 SA Merc LJ

Dupper O “Part-time employees and the pursuit of substantive equality: A comparative study of the potential and limitations of discrimination law”

South African Mercantile Law Journal 221-252

Godfrey et al 2005 “On the outskirts"

Godfrey S, Clarke M and Theron J with Greenburg J “On the outskirts but still in fashion: Homeworking in the South African clothing industry" Development and Labour Monograph Series (UCT Institute of Development and Labour Law Cape Town 2005)

Grogan Workplace Law

Grogan J Workplace Law (Juta Kenwyn 2007)

Lund and Srinivas 2000 Learning from experiences

Lund F and Srinivas S Learning from experiences: A gendered approach to social protection for workers in the informal economy (International Labour Office Geneva 2000)

Mills 2004 ILJ

Mills SW “The situation of the elusive independent contractor and other forms of atypical employment in South Africa: Balancing equity and flexibility” 2004 Industrial Law Journal 1203-1235

Olivier 1998 ILJ

Olivier M “Extending labour law and social security protection: The predicament of the atypically employed” 1998 Industrial Law Journal 669686

Olivier Impact of the Constitution

Olivier MP “Impact of the Constitution on labour law and employment relations” in “Statutory Employment Relations in South Africa” in J Slabbert et al (eds) Managing employment relations in South Africa (LexisNexis Butterworths Durban 2005)

Olivier The contract of employment

Olivier MP “The contract of employment” in “Statutory Employment Relations in South Africa” in Slabbert J et al Managing employment relations in South Africa (LexisNexis Butterworths Durban 2005)

Olivier, Smit and Kalula Social Security

Olivier MP, Smit N and Kalula ER (eds) Social Security: A legal analysis

(LexisNexis Butterworths Durban 2003)

Slabbert et al Managing employment relations

Slabbert J et al (eds) Managing employment relations in South Africa

(LexisNexis Butterworths Durban 2005)

Strydom Essential Employment Discrimination

Strydom EML et al Essential Employment Discrimination Law (Juta Lansdowne 2004)

Theron 2008 ILJ

Theron J “The Shift to services and triangular employment: Implications for labour market reform” 2008 Industrial Law Journal 1-21

Theron 2003 ILJ

Theron J “Employment is not what it used to be” 2003 Industrial Law Journal 1247-1282

Thompson 2003 ILJ

Thompson C “The changing nature of employment” 2003 Industrial Law Journal 1793-1815

Traversa “Protection of part-time workers"

Traversa E “Protection of part-time workers in the case law of the Court of

Justice of the European Communities” in Blanpain R and Weiss M (eds) Changing industrial relations and modernisation of Labour Law (Kluwer Law International The Hague 2002)

Van Niekerk 2005 CLLJ

Van Niekerk A “Employees, independent contractors and intermediaries:

The definition of employee revisited” 2005 Contemporary Labour Law Journal 11-20

Van Niekerk and Christianson Law @work

Van Niekerk A and Christianson M (eds) Law @work (LexisNexis Durban 2008)

Webster and Bezuidenhout 2005 27 Nov

Webster E and Bezuidenhout A "Debating the flexible world of work in South Africa" in Edigheji O (ed) Trajectories for South Africa: Reflections on the ANC’s National General Council (SARPN Pretoria 2005) [Found on internet] [Date of use 27 November 2008]

Register of cases

South Africa

Transport and General Workers Union & another v Bayette Security Holdings 1999 ILJ 1173 (LC)

Louw v Golden Arrow (Pty) Ltd 2000 ILJ 188 (LC)

Mahlangu v Amplats Development Centre 2002 ILJ 910 (LC)

Amazulu Football Club v Hellenic Football Club 2002 ILJ 2357 (ARB)

Building Bargaining Council (Southern and Eastern Cape) v Melmons Cabinets 2001 ILJ 120 (LC)

Coetzee v Commits & others 2001 ILJ 331 (C)

LAD Brokers (Pty) Ltd v Mandla 2001 22 ILJ 1813 (LAC)

Mans v Mondi Kraft Ltd 2000 ILJ 213 (LC)

Midway Two Engineering & Construction Services BK v Transnet Bpk 1999 ILJ 738 (SCA)

Motor Industry Bargaining Council v Mac-Rites Panel Beaters and Spray

Painters (Pty) Ltd 2001 ILJ 1077 (N)

Medical Association of SA & others v Minister of Health & another 1997 18 ILJ 528 (LC)

Niselow v Liberty Life Association of SA Ltd 1998 (4) SA 163 (SCA)

S v Makwanyane 1995 (3) SA 391 (CC)

SA Broadcasting Corporation v McKenzie 1999 20 ILJ 585 (LAC)

Borcherds v CW Peace & F Sheward t/a Lubrite Distributors 1991 12 ILJ 383 (IC)

South African National Defence Union v Minister of Defence 1999 4 SA (CC)

NUMSA & others v Gabriels (Pty) Ltd Case 523/2001 (LC) 2 December 2002 (unreported)

The European Court of Justice

Bilka-Kaufhaus GmbH v Weber von Hartz [1986] 2 CMLR 701

Jenkins v Kingsgate (Clothing productions) Ltd [1981] 2 CMLR 24

Register of legislation

Basic Conditions of Employment Act 3 of 1983

Basic Conditions of Employment Act 75 of 1997

Constitution of the Republic of South Africa 1996

Employment Equity Act 55 of 1998

GNR 1774 Government Gazette 29455 1 December 2006

Labour Relations Act 66 of 1995

Occupational Health and Safety Act 85 of 1993

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Skills Development Act 97 of 1999

Register of directives and other international documents

Declaration on Fundamental Principles and Rights at Work of 1998

EEC Treaty

Treaty of Amsterdam

African Charter of Human and Peoples’ Rights 1981

Freedom of Association and Protection of the Right to Organise Convention 87 of 1948

Homework Convention 177 of 1996

Employment Relations Recommendation 2006

Employment Relationship: An annotated guide to ILO Recommendation No 198

International Covenant on Economic, Social an Cultural Rights 1996

Maternity Protection Convention 183 of 2000

Part-Time Work Convention 175 of 1994

Recommendation of Part-Time Work 182 of 1994

Rural Workers’ Convention 141 of 1975

Workers with Family Responsibilities Convention 156 of 1981

European Directives

Employer’s obligation to inform employees on conditions applicable to the contract or their employment relationship Directive 1991

Equal Pay Directive 75/117/EEC

Equal Treatment for Part-Time Workers Directive 1997

Equal treatment with regard to working conditions Directive 76/207/EEC

Fixed-Contract Work Directive 1999

Framework Agreement on Part-time Work Council Directive 97/81/EC

Mutual recognition of diplomas, certificates and other formal qualifications of self-employed persons Directive 1989

Occupational pension schemes Directive 86/378/EEC

Organisation of work time Directive 93/104/EEC

Prohibition of discrimination in statutory social security schemes Directive 79/7/EEC

Safety and health at work of pregnant woman Directive 92/85/EEC

Register of internet sources

Department of Labour 1996 27 Nov

Department of Labour 1996 Green Paper on Labour: Minimum Standards

Directorate Policy Proposals for New Employment Standards Statute Green Paper [Found on internet] htm [Date of use 27 November 2008]

EURLex 2 Aug

EURLex 2008 Overviews of the European Union Activities Employment and

Social Affairs [Found on internet] [Date of use 2 August 2008]


ILOLEX 2008 Database of International Labour Standard [Found on internet] [Date of use 8 August 2008]



How to Cite

Fourie, E. S. (2017). Non-Standard Workers: The South African Context, International Law and Regulation by The European Union. Potchefstroom Electronic Law Journal, 11(4), 109–152.